Welcome to Legal Briefs for HR! This update on issues that matter to employers is provided to HR professionals, in-house counsel, business owners and others who can benefit from receiving monthly updates on new laws, court cases, helpful websites and more. Anyone is welcome to join. Just email me to be added to (or removed from) the group and you can join over 3500 subscribers to this free update. Past editions are posted at http://www.munckcarter.com/ under E-Newsletter.

A warm welcome to new subscribers who attended a session I provided at Sage Software, and my apologies to those who registered for the August 16 Corpus Christi HRMA meeting/speech, which was postponed due to tropical storm Erin. I'm looking forward to presentations for the Texas Association of Business (TAB) Fort Worth chapter (Sept. 5), Dallas CEBS (Sept. 13) and Wichita Falls HRMA (Sept.18).

Here's what's up:

1. On the Border - Congress couldn't get 'er done before the break, so the executive branch of the federal government took a swing at immigration woes by announcing 26 "reforms" on August 10, relating to border security, interior enforcement, worksite enforcement, guest worker programs, existing immigration practices and assimilation. A summary of the eight worksite enforcement components are below. For a complete copy of the DHS Fact Sheet, go to www.dhs.gov/xnews/releases/pr_1186757867585.shtm

a. Final no-match regulation from Dep't of Homeland Security (there is a link to this document, on the right side of the DHS Fact Sheet homepage); it will take effect 30 days after date of publication in the Federal Register (not published yet)

b. List of 29 acceptable documents on the back of Form I-9 will be reduced to eliminate those most often used for ID fraud

c. Civil fines on employers who knowingly hire illegal immigrants will increase by 25%

d. Expansion of criminal investigations against employers who knowingly hire large numbers of illegal immigrants

e. Pending rule requiring federal contractors to use E-Verify (fka Basic Pilot) on all new hires

f. Federal government will help state governments who want to mandate public employers' use of E-Verify

g. E-Verify database will expand to include cross-check of visa and passport information (including individuals' photos)

h. E-Verify database may expand if states allow federal government to tap into their DMV databases (including individuals' photos)

2. VEVRAA Facelift - A final rule issued on August 8, implementing the 2002 Jobs for Veterans Act (JVA) which means significant changes to the Vietnam Era Veterans Readjustment and Assistance Act of 1974 (VEVRAA). Here's a summary of what you need to know:

a. It takes effect September 7, 2007

b. The affirmative action requirements will apply to employers of 50+ employees with new federal contracts and subcontracts for $100,000 or more (but the old $25,000 threshold remains in place for existing contracts that were entered into or modified on or before December 1, 2003).

c. The protected categories used to be Vietnam-era veterans, special disabled veterans, other protected veterans and recently separated veterans; now they are disabled veterans, recently separated veterans, other protected veterans and Armed Forces service medal veterans

i. "Disabled veterans" now encompasses all veterans with service-connected disabilities; the percentage disability ratings are gone

ii. "Recently separated veterans" has been expanded from within one year of discharge from active duty to three years

iii. "Other protected veterans" are veterans who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized (this will encompass the Vietnam Era vets); link to badge list is posted at www.dol.gov/esa/ofccp/

iv. "Armed Forces service medal veterans" are veterans who while serving on active duty in the U.S. military ground, naval or air service participated in a U.S. military operation for which an Armed Forces service medal was awarded; link to service medal list is provided at www.dol.gov/esa/ofccp/

v. The exclusion for a person discharged or released under dishonorable conditions is preserved

d. Invitations to Self-Identify are still required, but will need to be modified to reflect the changed regulation

e. Annual VETS-100 reports are still required

f. Posting of most of your job openings with your local employment service is still required, but using America's Job Bank (AJB) to accomplish this via a single source is no longer possible and the OFCCP has yet to identify a replacement entity for AJB

3. It's Up to You - Employers are getting their minds around the expanded race/ethnic categories on the Standard Form 100 (aka EEO-1 Report). Employers who are also federal government contractors have been wondering if they should stick with the "old" five race categories when preparing their affirmative action plans (AAPs), or switch to the new array. In mid-August the OFFCP basically said, "It's up to you." While they prepare new regulations to incorporate the expanded race/ethnic categories, OFCCP will not cite a contractor who decides to jump ahead and use the "new" categories in their AAPs now.

4. Back to School - This is the perfect time of year to check and see if your policies (as reflected in your employee handbook or intranet) correctly reflect job-protected leave available for parents/guardians to visit the kiddo's schools and day cares, as a matter of state law. Variations on the rule can include [1] small employer exclusions; [2] parent is summoned by a school official vs. chooses to visit; [3] purpose is to meet with teacher or principal vs. any event (e.g., see child in a play, attend soccer game); and [4] limits on the number and/or length of absences, including scenario where both parents work for the same employer. Texas had several versions introduced during the 2007 legislative session, but none of them passed.

5. Tough to Puff - Fort Worth is strengthening it's smoking ordinance, eff. 1-1-08, to ban smoking in most public places including within 20 feet of the main entrance or exit of a public facility. Fines are up to $500 for residents and proprietors and up to $2000 for businesses and restaurant owners/operators. The State of TN also bans smoking in most public places, including workplaces (exception if less than 3 ees), eff. 10-1-07 and further requires that '[t]his prohibition on smoking shall be communicated to all existing employees and to all prospective employees upon their application of employment."

6. Social Correctness - Add Nebraska to the growing list of states that are limiting employers' use of their employees' SSNs as an employee identifier. Effective, Sept. 1, employers in the corn kingdom shall not [a] publicly post or display more than the last 4 digits of an ee's SSN or otherwise make it available to the general public or to an ee's co-workers; [b] require an ee to transmit 4+ digits of a SSN over the Internet unless the connection is secure or the info is encrypted; [c] require an ee use his or her SSN to access an Internet website unless used in conjunction with a password, unique ID or other authentication device; or [d] require an ee to use 4+ digits of an SSN as an ee number for any type of employment-related activity. CA, MI and PA already have similar limitations and NY's takes effect 1-1-08. Do you sense a trend?

7. Any Relation to Wyatt? There's a new chair at the EEOC and her name is Naomi Earp. Ms. Earp was one of two primary creators of the Eradicating Racism and Colorism from Employment (E-RACE) Initiative, which is intended to shape EEOC's enforcement actions as new forms of race and color discrimination surface as the country's demographics change. She mentions that the EEOC will increase its focus on cases involving employer's use of arrest and conviction records, employment and personality tests and credit scores in employment decision-making. She has also expressed a concern that a surge in the use of video resumes may increase both intentional discrimination based on the appearance of the candidate, and disparate impact discrimination on minority candidates who don't have easy access to computers and video cameras. She's not alone. A Louisiana-based federal contractor will pay OFCCP $749,000 in back pay and interest to 399 black applicants who were rejected for the job of utility worker based, in part, on a literacy test (the Test of Adult Basic Education) that was found to disproportionately screen out minority applicants.

8. More Help for Heroes - The Hire a Hero Act (S. 1971), if passed, will send $25 million per year to the National Guard Bureau, to award grants to nonprofits that help veterans find private sector employment when they return home from military service. The State of Indiana passed a law, eff. 7-1-07, granting up to ten days of job-protected leave each year to the parent, grandparent, sibling or spouse of a U.S. military service member who has been called to active duty. More generous leave proposals, for up to six months of unpaid leave, cleared the U.S. Senate in early August. Stay tuned.

9. Curious About Your Neighbors? - Go to http://zipskinny.com/ type in your zip code and learn what the U.S. census-takers found out about your neighbors - gender, race, income, education, marital status and occupation. Type in the zip code of an area where you plan to expand your business/recruit and see what's available.

10. Double Teamed - The Heart of Texas (Waco) and Central Texas (Temple/Killeen area) SHRM chapters are pairing up to provide a "Diversity in the Workplace" conference on September 20, at the Waco Convention Center. For more info and to register, go to http://www.wacohr.org/ and click on the conference link.

Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Carter, P.C.
600 Banner Place Tower
12770 Coit Road
Dallas, TX 75251
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (cell)

amross@munckcarter.com
http://www.munckcarter.com/

Legal Briefs for HR ("LB4HR") is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters. For answers to your specific questions, please consult with counsel. If you wish to be removed from the group, reply and put "Remove" in the subject line. You may also reply to notify the author of an additional or changed email address.

If you wish to post, reprint or send LB4HR for the benefit of your organization, please contact the author for permission. Upon approval, nonprofit entities may post, reprint or send LB4HR to their members for no fee. For-profit entities may be charged a nominal fee. LB4HR is copyrighted work product and may not be posted, reprinted or sent without permission, however, individual subscribers are welcome to forward LB4HR to individuals or within their place of employment without seeking permission, so long as the author's complete contact information is included.

Subscribers are encouraged to notify their Internet Service Provider (ISP) that amross@munckcarter.com is a trusted source, in order to receive an uninterrupted subscription to LB4HR. Due to the size of the email group and occasional use of sensitive words, LB4HR can be perceived as spam or inappropriate email and deleted or diverted by your ISP's filter.